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Fair Report Privilege Bars Libel Suit Against Jeanine Pirro

By Dori Ann Hanswirth, Theresa House, and Jesse Feitel

Judge Jeanine Pirro's report and commentary about controversial legal proceedings was absolutely protected under New York law, according to a recent New York state court decision. Mckesson v. Pirro (N.Y. Sup. March 25, 2019).

Justice Robert D. Kalish dismissed the defamation complaint of prominent social activist DeRay Mckesson against Fox News and its popular host Judge Jeanine Pirro. In his 22-page decision, Justice Kalish makes an important clarification about the scope of New York's fair and true report privilege, and provides a full-throated defense of the legal protections available to commentators who express opinions about court proceedings—even when those opinions are controversial.

Factual Background

Mckesson sued over Judge Pirro's comments on two federal court proceedings in Louisiana. Both of those cases related to Mckesson's activities at a 2017 political demonstration in Baton Rouge associated with the Black Lives Matter movement.

In the first of those actions, Mckesson was the lead plaintiff for a class action of 69 protestors who were arrested at the demonstration, alleging that they were victims of excessive force and arrest without probable cause. The case was settled with plaintiffs receiving a "total economic benefit[]" of $136,000.

In the second Louisiana action, a different federal judge dismissed a personal injury complaint against Mckesson filed by an anonymous police officer who was seriously injured during the same demonstration. In his John Doe complaint, the police officer claimed that Mckesson was responsible for his injuries based on allegations that Mckesson "staged and organized" the demonstration, that he "was in charge of the protests and he was seen and heard giving orders throughout the day and night of the protests," and that, as the protest grew into a full-blown riot, he "incited the violence." A proposed amended complaint submitted by the officer also asserted claims against the social movement "Black Lives Matter" and further alleged that Mckesson "direct[ed] the activity of the protestors to incite lawless actions, including blocking of a public highway and allowing protestors to the throw objects at the police."

On September 28, 2017, the district court in the Doe police officer action granted a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court first held that the complaint fell below federal pleading standards, because the officer did not allege specific facts as to how Mckesson allegedly incited violence or what orders that he gave to others to commit violent acts. The court found that the First Amendment barred the officer from holding Mckesson liable "solely because of his association with" other protestors who may have acted violently at the rally. The court also refused to allow the officer to proceed against the proposed defendant Black Lives Matter, because the group was not a "juridical person that is capable of being sued."

The Challenged Statements

The next day, Judge Pirro appeared as a guest on Fox News' morning news and commentary program "Fox and Friends" to discuss and analyze the outcome of the Louisiana lawsuits. In her segment, Judge Pirro summarized the allegations against Mckesson in the police officer's complaint and expressed her opinion about the substance and outcome of the two lawsuits—which was, essentially, that it was unfair for the law to allow one group of protestors to sue in federal court as part of a class action, while at the same time denying an injured police officer the right to sue the another group of protestors, particularly when both groups were part of the same protest and the same organized social movement.

Mckesson's suit challenged the following statements by Judge Pirro: (1) that Mckesson "directed the violence"; (2) that the John Doe police officer "was injured at the direction of Deray Mckesson"; and (3) that "Deray Mckesson walks away with $100,000 for an organization that is amorphous."

Fair and True Report of Judicial Proceeding / Protected Opinion

Judge Pirro and Fox moved to dismiss Mckesson's complaint on grounds that the challenged statements were absolutely privileged under N.Y. Civil Rights Law § 74 ("Section 74") as fair and true reports of the two Louisiana proceedings, and that the challenged statements were not actionable as a matter of law because they were protected opinion. The motion to dismiss also asserted that the statement that Mckesson received a civil rights settlement was not capable of a defamatory meaning, and that none of the statements were published with actual malice. The motion was fully submitted on May 15, 2018, and oral argument took place on October 23, 2018.

In the March 25, 2019 decision, Justice Kalish rejected Mckesson's arguments and dismissed the complaint in its entirety. The court concluded that Judge Pirro's comments were privileged under Section 74, and also protected as opinion under the First Amendment and the New York State Constitution.

First, the court rejected Mckesson's contention that because Section 74, by its literal terms, applies to "libel" claims only, it could not bar a claim based on a television report, which Mckesson argued should be considered a claim based in slander. Citing multiple previous decisions applying Section 74 to defamation claims based on televised statements, Justice Kalish held unequivocally that Section 74 applies both to slander and libel claims, as well as to statements on television.

Next, the court confirmed that a report summarizing allegations in a judicial complaint is protected by Section 74, even if those same allegations are later found not to satisfy federal pleading standards. Mckesson argued that Judge Pirro's statements could not be a "fair and true" report of the proceedings because the police officer's allegations against him that Pirro reported on were too conclusory to survive a Rule 12(b)(6) motion (even though the segment also reported that the claims had been dismissed). Justice Kalish disagreed, holding that a report discussing allegations in that complaint will be absolutely privileged under Section 74 so long as it was a substantially accurate report of its content—even if a complaint is subsequently dismissed by a federal judge on Rule 12(b)(6) grounds. (Notably, on April 24, 2019, the United States Court of Appeals for the Fifth Circuit reversed the court below and reinstated the negligence claim against Mckesson.)

Mckesson also attempted to evade Section 74 by arguing that certain of Judge Pirro's statements would be interpreted as stating actual facts about him, rather than mere allegations in a lawsuit, because for at least one of the statements she had failed to say "the plaintiff alleged" before repeating the plaintiff's allegations. The court disagreed, holding that Section 74 will apply so long as the publication as a whole will be understood to be a report of an official proceeding, even if each individual sentence of the report does not expressly refer back to that proceeding.

Separate and apart from the court's Section 74 holding, Justice Kalish also agreed that Judge Pirro's statements were protected as her opinion of the Louisiana proceedings, based squarely on the facts alleged in those proceedings.

In reaching this conclusion, the court emphasized the context of the statements, including that the statements at issue in were made on "Fox & Friends," which is known to be a news and commentary talk show, and that Judge Pirro had a reputation and earned popular acclaim for her opinionated commentary.

The court also relied on the context of the statements to reject Mckesson's argument that Judge Pirro's statements implied the existence of undisclosed facts. The court concluded that there was "no suggestion at any point" that Judge Pirro and the other Fox anchors who appeared during the segment had "any kind of direct knowledge" about the Baton Rouge demonstration. According to the opinion, there was absolutely no insinuation that Judge Pirro or the other anchors "witnessed the protest or [] spoke to sources who witnessed the protest."

Viewing the entire segment in context, according to Justice Kalish, distinguished this case from Greenberg v Spitzer, 155 A.D.3d 27 (2d Dep't 2017). In Greenberg, the Second Department concluded that the defendant, the former New York State Attorney General, may have caused viewers to believe he implied undisclosed facts about the plaintiff because he "spearheaded the investigation" into the plaintiff's accounting practices. The court also rejected Mckesson's reliance on the New York Court of Appeals' decision in Davis v. Boeheim, 24 N.Y.3d 262 (2014) and focused on the broader context of the segment to conclude that Judge Pirro was expressing a pure opinion that the Doe police officer should have been allowed to continue his federal lawsuit against Mckesson, on the basis of Mckesson's actions during the Baton Rogue demonstration.

The court further concluded that the controversial subject matter, which was part of an ongoing debate involving such heated topics as police brutality and race, gave further support to a finding that Judge Pirro's comments were protected opinion. Against this backdrop, according to Justice Kalish, viewers would understand that Judge Pirro was expressing her opinion rather than statements of fact.

While Justice Kalish did not reach the question of whether the Mckesson had sufficient alleged that the defendants acted with actual malice, he nevertheless concluded his opinion with a lengthy citation to the New York Court of Appeals' decision in Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369 (1977), which provides a strong defense to the N.Y. Times Co. v. Sullivan doctrine. Specifically, Justice Kalish quoted the Court of Appeals' holding that even though the Sullivan doctrine "may sometimes yield harsh results" and may leave "[i]ndividuals who are defamed ... without compensation," principles of free speech command this result because "excessive self-censorship by publishing houses would be a more dangerous evil."

Dori Ann Hanswirth, Theresa M. House, and Jesse M. Feitel of Arnold & Porter represented Fox News and Judge Jeanine Pirro. Plaintiff was represented by Matthew D. Melewski, Altamont, NY.

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